- (1.) THIS petition for probate is filed in respect of the said Will and Testament of John Frederick Gonsalves who died in Mumbai on 3-1-1983. The last Will and Testament is dated 1-4-1979. Petitioner No. 1 is the son so also petitioner No. 2 is the son of the deceased.
(2.) CAVEAT came to be lodged opposing petition for probate by the caveator/defendant/respondent Mrs. Agnes Mary Conception Rebello who as per the particulars of legal heirs given in the petition is daughter of the deceased. The ground of objections that were raised in the caveat is that the Will is null and void and inoperative in-law because even though the alleged Will is dated 1-4-1979. Julia wife of the deceased was alive, thereafter neither she nor any of the heirs accepted the existence of the Will but to the contrary the said Julia acted in such a way as if no Will was in existence. Instances in that regard have been given in the caveat. Caveator further contended that all the legal heirs of the deceased had given a letter to the Bank of India in 1990 represented to the bank that the deceased John Frederick Gonsalves died without leaving a Will. Therefore in sum and substance the caveator contended that right from 1979 till 1991 none of the parties acted as if the Will was existing. To the contrary all of them had disregarded the Will and therefore now according to them the theory put forth by the petitioner that the Will of 1979 was found in 1990 is a bogus case, concocted and invented to deny to their heirs and legal representatives what is due to them if no Will was in existence or if the deceased John Frederick Gonsalves had died intestate. The petition and the Will were therefore strongly opposed.
(3.) ON the basis of the aforesaid pleadings, my predecessor had framed following issues on 8-10-1997 :--- 1) Whether the plaintiffs prove that the Will dated 1-4-1979 is the last Will of deceased John Frederick Gonsalves ? 2) Whether the plaintiffs prove that the deceased John Frederick Gonsalves was of sound and disposing state of mind when he executed the Will dated 1-4-1979 ? 3) Whether the defendant proves that the said Will is not of the deceased John Frederick Gonsalves and that the said deceased died intestate ? 4) Whether the plaintiffs prove that they have manifested their intention to act as Executors and are entitled to the grant of probate ? 5) Are the plaintiffs entitled to the grant of probate of the said Will ? 6) What order ? My findings on the issues are as under : Issue No. 1 : Affirmative. Issue No. 2 : Affirmative. Issue No. 3 : In view of findings on Issue Nos. 1 and 2 issue No. 3 does not survive. Issue No. 4 : Negative. Issue No. 5 : Negative. Issue No. 6 : As per the final order. ;